Supreme Court strikes down law that treats children born overseas to unmarried parents differently

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By Ariane de Vogue (CNN Supreme Court Reporter)

The Supreme Court on Monday struck down a federal law that treats children born overseas to unmarried parents differently for purposes of citizenship depending upon whether the biological father or mother is a US citizen.

Under the law, US citizen fathers have to spend at least five years in the states before the child could become a citizen, while the mother only had to spend one year.

The plaintiff in the case, Luis Ramon Morales-Santana, was born in 1962 in the Dominican Republic to unmarried parents. His mother was a citizen of the Dominican Republic and his father was a US citizen who had not spent more than five years in the United States after his 14th birthday.

Morales-Santana was admitted to the US as a lawful permanent resident in 1975. After years of living in the US he was put in removal proceedings after convictions for various felonies. He claimed he was a US citizen because of his father's citizenship. But the Board of Immigration Appeals denied the claim because the father had not satisfied the physical presence requirements.

Justice Ruth Bader Ginsburg, who dedicated her career to the issue of gender discrimination before taking the bench, wrote the decision.

The section of the 1952 Nationality Act, she wrote, could not "withstand inspection under a Constitution that requires the government to respect the equal dignity and stature of its male and female citizens."

But while the law "violates the equal protection principles," the court also said it is "not equipped" to grant the relief that Morales-Santana seeks -- striking down the law and grant him citizenship. Congress would have to make that determination, Ginsburg wrote.

Under the Immigration and Nationality act of 1952 as originally written, a child born outside of the United States to an unwed citizen father and a non-citizen mother has citizenship at birth only if the father was present in the United States for a period totaling at least 10 years, with at least five of those years occurring after the age of 14. But the statute has since been amended to decrease the time requirement for those born since November 14, 1986, to 5 years in the United States, at least two of which were after age of 14. A child born abroad to an unwed citizen mother has citizenship if the mother lived in the United States for at least one year at some point prior to the child's birth.

Lawyers for Morales-Santana challenged the law, arguing that its gender-based difference in treatment violated the father's right to equal protection.

In Court, the Justice Department argued that court precedent has "made clear that mothers and fathers are not typically similarly situated with respect to their legal status concerning the child at the moment of birth."